Secret Trials: Compromising Human Rights in the Name of National Security?

Introduction

After 2 years behind bars a Danish resident of Tunisian origin, Slim Chafra, was released in December 2010. A few days ago - on June 24th - the Danish Supreme Court upheld the ruling of the High Court stating that the prosecutor did not provide sufficient evidence for expelling him from the country. Practically all evidence and accusations against him were presented only in the secret trial, which is in violation with the legal principle of “equality of arms” between the prosecutor and the defense lawyer.

The case resonates with Franz Kafka’s classic novel “The Trial” in which the protagonist, Josef K., is arrested and prosecuted without ever knowing why and on what grounds. So how is Kafka’s story, which takes place in an oppressive regime several decades ago, relevant in the contemporary Danish context? Even though Denmark can hardly be classified as an oppressive regime, the persistent “war on terror” has reintroduced some instruments similar to the system used in the society of Josef K. The Danish method of secret trials, in which sensitive security information is presented to a specially appointed judge, defense lawyer, and prosecutor but not to the client himself, has given rise to a complex legal-political debate. Alongside with the secret trial, the regular open trial proceeds but with censored materials. In essence, this can result in you being a suspect of a crime without grasping what you were supposed to be planning, on what grounds they base the judgment and thereby not having the access to understand your own conviction. Josef K.’s alienation towards the system as such has thus transcended to the Danish legal system.

The 9/11 terror attacks generated an extensive change in the security policies of most Western democracies. In the attempt to fight terrorism and secure their citizens, states have implemented extensive counter-terror measures. However, these policies have endangered the civil rights that lie at the core of democracy and therefore the fight against terrorism poses an ironic dilemma where counter-terror legislation threatens to destroy the very rights and values it strives to protect. In the Danish political debate the main voices arguing in favor of enhanced counter-terror measures have been the parties in government exemplified by former Minister of Justice Lene Espersen advocating that the stricter measures are necessary in the light of the new world order and the fight against terrorism. This view has been widely criticized by experts and human rights activist including legal consultant from Amnesty International Claus Juul arguing that the amendments made to Danish law are “reducing and weakening the independent judicial review of practices of the executive branch” and thus severely compromise democratic rights.

In the following we will explore secret trials against terror suspects as part of the Danish counter-terror legislation in the aftermath of the 9/11 terror attacks. We will address this issue by starting with the broad perspective i.e. the international legal framework with special attention on the European context. Danish counter-terror legislation is closely linked to the international initiatives, which is why it is of significance to incorporate this setting in order to better comprehend the current Danish situation. Secret trials were introduced as a formal judicial tool in May 2009, but we will use two case studies prior to the implementation of the law to illustrate how these particular cases were influential in shaping this bill. The issue of the use of secret trials is of strong current interest with the so-called Tunisian case, where the Supreme Court on June 24th, 2011 upheld that the prosecutor did not present sufficient evidence to have the terror suspected Slim Chafra expelled from Denmark. Furthermore, it is essential to illustrate how counter-terror measures such as the secret trials are not just temporary or limited restrictions against perceived “enemies of the state” but serious violations of Danish democracy affecting the general population. An across-the-board debate on how this development has affected our democratic society has been missing in Denmark, but we see it as a vital discussion with the purpose of ensuring that everyone is, and will remain, equal before the law.

Absence of Historical Awareness

In a historical perspective the post 9/11 policy change is remarkable. During the Cold War the Eastern Bloc served as a pronounced example of the dangers of infringing democratic rights. Claus Juul states that “before the Wall came down, all we had to do, when discussing the need for vigorous, independent, judicial control with the executive branch was to look to the East to see where we could all end up, if we adopt a legalistic trend whose main point is that the end justifies the means.” Today we seem to have forgotten about this insight and according to Claus Juul ” the current legal-political discussion appears to suffer from a collective memory loss.” Obviously, this is not to argue that the current Danish system is fundamentally undemocratic or anywhere near a modern version of the DDR. However, as argued by a professor of International Studies at Macalester College, James von Geldern there is a certain degree of discursive similarity between less democratic political systems in European history and the current Danish counter-terrorism legislation.

The collective memory loss seems to have kicked in after 2001, as the 1990s saw a considerable political will from Western democracies to strengthen and prioritize human rights at home and abroad. However, this trend seems to have been replaced by an increased compromising of human rights in the name of protecting national security and fighting terrorism. The political will to include concerns for human rights in the fight against terrorism have been downgraded, leaving it instead up to judicial bodies and human rights organizations to subsequently uphold these rights. On the international level this can be seen in the UN Counter-Terrorism Committee’s refusal to include human rights concerns in their evaluations of anti-terror initiatives conducted by states in order to live up to resolution 1373. This legally binding resolution commits all 192 UN member states to fight terrorism by making it a criminal offence and in doing so it requires them to define the concept. With the absence of an internationally agreed upon definition of terrorism, each member state has to construct its own definition, posing the problematic issue of states being able to define their own enemy.

This lack of political commitment of dealing with human rights concerns mentioned above is controversial when viewed within the international legal framework consisting of 13 international conventions. Many of these conventions contain protection clauses emphasizing the priority of human rights in the fight against terrorism. Hence the general statement by the human rights legal system that builds upon these conventions is that states must respect human rights. At the same time the system allows individual states to derogate or abstain from some of these rights out of concerns for security, leaving it very much up to individual states to balance the concerns for national security and human rights.

European Framework - Why is it Important for Denmark?

Many European states, including Denmark, struggle with balancing their national counter-terror policies and international human rights requirements. In the European context, this could be exemplified by the European Convention on Human Rights (ECHR), which is signed by most European states, giving the European Court of Human Rights (ECtHR) a jurisdiction over creating a balance between the rights of individuals and the response to terrorism. Denmark ratified the Human Rights Convention in 1955 and has since been entitled to comply with these international standards. Are the basic human rights of terror-suspects then guaranteed by European-wide human rights legislation or is it merely up to individual states to decide how they go about their terrorism-related trials? In theory, the European states that have signed the ECHR should not put terror suspects beyond the law. On the one hand the ECHR requires states to protect everyone within their jurisdiction against terrorist acts; on the other hand, it imposes certain limitations on the measures that can be taken to counter terrorism threat. This means that the states must also comply with a number of specific human rights enjoyed by anyone surmised of having committed a criminal offence, including terrorist suspects.

The most relevant of these rights are the due process guarantees contained in the right to liberty in Article 5 of the ECHR and the right to a fair trial in Article 6. The latter is especially important in the context of the Danish discussion of secret trials, including the basic right to a fair and public hearing within a reasonable time frame. Furthermore, anyone charged with a criminal offence has the right to be presumed innocent until proven guilty according to law; the right to be informed promptly of the nature and cause of the accusation against him/her and the right for defense through legal assistance. Thus, according to the ECHR, a person charged with a criminal offence is entitled to be tried in open court where he/she has access to the materials used against him/her as evidence. Moreover, there must be ‘equality of arms’ between the prosecution and defense.

The problem related to particular difficulties that arise in the prosecution of terrorism offences is that the ECHR has interpreted the articles on the right to liberty and free trial with a certain degree of flexibility, leaving some room for permissible modifications by states. In other words, it takes into account the special nature of terrorist crime and the constraints of dealing with it as long as it is compatible with the provisions stated in the ECHR.

In terms of monitoring, it is often the human rights legislation of the individual states that ensures the compatibility of counter-terrorism legislation and the human rights standards as stated in the ECHR. James von Geldern notes that while the ECtHR can and does reach courageous and audacious decisions, these can only exact monetary penalties that are basically meaningless to a state. Furthermore, von Geldern argues that although the court can order a state to implement new laws consonant with ECHR decisions, the decision is enforced by the European Council (EC). This is important because the EC is European Union’s strategic body consisting of heads of states that have little interest in protecting ‘terrorists’. Therefore, it could be argued that when it comes to national security, the European leaders would typically rather pay the fine and act as they wish.

In order to understand how the current ‘kafkaesque’ terror trials in Denmark are not necessarily incompatible with the ECHR, the aforementioned degree of flexibility becomes especially relevant. Claus Juul points out how in certain situations it can be an acceptable measure to have a ‘two-pronged court procedure’, allowing the presentation of ‘secret evidence’ before the court and a specially appointed lawyer. Juul further explains how such a system is not per se a violation of Article 6 of ECHR as long as the evidence presented in the open part of the trial is accurate and precise enough, allowing the terror suspect to defend himself adequately. The recent trial cases in Denmark, which have been brought to the public attention, must be regarded in the backdrop of wider developments in the Danish national anti-terror legislation.

Terror or Not - That is the Question (§ 114)

In the Danish context, the policy shift towards stronger counter-terror measures is most evident in the changed role of the Danish intelligence agency Politiets Efteretningstjeneste (PET). During the Cold War PET’s main raison d’être was the registration and surveillance of people suspected of being communists. By the end of the Cold War PET entered an identity crisis as a poorly resourced agency without a concrete purpose and under heavy political critique for its previous work. The changed political environment of the new millennium transformed PET’s role almost overnight. PET was turned into the front guard of the Danish counter-terrorism struggle and its funds and working conditions were dramatically improved.

This redefinition of PET was accompanied by the first Danish anti-terror package, “Terrorpakke I” passed by the Danish parliament in 2002. Besides new legal measures, such as the requirement for phone companies to store data up to a year, it offered a new definition of terrorism in § 114 of the Danish penal code. This so-called “terrorism-paragraph” offers a very broad definition of terrorism with the possibility of a large degree of interpretation by the police and the judicial system. Hence it is up to the police to decide if someone is to be charged under § 114 or regular criminal law with substantial consequences for the potential gravity of the sentence. The acts under this paragraph are already criminal acts e.g. murder or arson, but it is the intent behind the act that determines the judgment.

When new and massive terrorist attacks took place in London and in Madrid the international community, in this case the Council of Europe Convention on the Prevention of Terrorism (CECPT), demanded a tightening of the legislation, which gave PET even more authorities in the second act, “Terrorpakke II”. PET hereby obtained a broader range of authority. For instance, regarding surveillance, more resources and the possibility of investigating without judicial approval were made available. During the enhancement of the legislation, PET was still not satisfied with the way the Danish court system functioned. Hence, they introduced some new practices, which in the end became formalised - the secret trials.

Secret Trials:...and Justice for All?

The use of secret trials as a legal instrument has often been justified in the name of protecting Danish values and national security. To have a closed trial in order to protect the name of the accused is not a new concept. However the practice of secret trials is not about protecting the accused, but rather to secure the national security. The system of secret trials was formally incorporated into the Danish legal system in May 2009. With inspiration from the British legal system and after the Tunisian case, the former Danish Minister of Integration, Birthe Rønn Hornbech, formed a system of secret trials to be used in terror and asylum related cases. As the following case studies demonstrate, the practice of secret council meetings and hiding material from the defendant and the defense lawyer was used long before that.

A secret trial has connotations of mystery attached to it, because only a handful of security-cleared persons are actually present and know what goes on. A secret trial functions alongside the “ordinary” and open court. The secret trial uses a special appointed defense lawyer, prosecutor and judge, nobody, but PET, knows who they are. The client does not even know who is defending him, and that particular lawyer will then have a couple of hours to get to know the case and to see if there exists any discrepancy between the censored papers and the full material. The problem is that the lawyer has no access to the client to ask if he has an alibi or a different take on the information. In effect the accused has lost some of the most fundamental rights as a suspect – that is to know what you are accused of and the possibility to contradict the presented evidence. The principle of “equality of arms” for the prosecutor and the defender is no longer in balance. How can you have a fair trial if you do not know what you are defending yourself against? In order to shed some light on these issues and illustrate the Danish practice of secret trials we have chosen two case studies.

The Vollsmose Case

On September 5th 2006, nearly 500 policemen were involved in a mass arrest in the Vollsmose neighborhood in the city of Odense. Around 60 persons were arrested, of which only three were eventually convicted of terror planning. The former Minister of Justice, Lene Espersen, declared after the arrest that this was the biggest terror case in Danish history. This case was unique both in terms of the potential outcome of the plans, as well as for the controversial use of secret materials.

In this particular case Bjørn Elmquist, the defense lawyer for one of the accused, had no full access to all the material and therefore had difficulties in defending his client on equal grounds and to provide him with a fair trial. The reason why the material could not be shown to neither the accused nor the defense lawyer was, again, based on the grounds that the information was too delicate and would potentially threaten national security.

After what Elmquist has labeled as a “discount-trial” in the Danish newspaper Information, he decided together with his client to appeal the case to the Supreme Court. The defenders wanted the case to be repeated because of the provocation aspect and the lack of access to all information. The Supreme Court did set a new precedent by ruling that PET cannot decide what material should be secret. But in this case the judges estimated that it did not affect the outcome. The Supreme Court did not take a stand on the practice of hidden and secret meetings per se, but was only concerned on the matter of the outcome of the trial.

The Tunisian Case

On February 2008 one Danish citizen and two Tunisian citizens, Slim Chafra (SC) and KS, were arrested for planning a terror-motivated murder of the Danish cartoonist Kurt Westergaard. Westergaard has been the target of several threats and attempts of attack on his person by since he drew the prophet Muhammad in the Danish newspaper Morgenavisen Jyllandsposten in 2005.

The Danish citizen was released shortly after the arrest, whereas the resident Tunisians were deprived of their liberty during the production of evidence. Later on they were both declared to be administratively expelled by the Ministry of Integration based on secret materials only shown to the Minister of Justice and the Minister of Integration. Due to the risk of torture, they could not be sent to Tunisia. Consequently, KS voluntarily chose to leave Denmark whereas SC was put in the refugee-and asylum camp, Sandholmlejren, on exceptional leave to remain, which entails a daily duty of notification to the police on their whereabouts.

He was allowed some visits to see his family in Aarhus, but when it was discovered that his family only lived 10 minutes from Westergaard, the legislation on aliens was tightened even further. The law was coined as the Tunisian-law after his case. SC appealed the verdict of exceptional leave to remain and the High Court (Østre Landsret) found that his right to a fair trial had been violated, because he and his defense lawyer did not know on what grounds PET was basing their accusations against him. On top of that the court ruled that his right to family life, according to the ECHR’s article 8, had been infringed, and finally that he had been remanded in custody in 8 months before the trial started was without sufficient foundation. He was therefore released in December 2010 and received a compensation of 35.000 Danish kroner.

UK: An Alternative Model for Denmark?

In discussions over Danish counter-terrorism legislation the British system has often been seen as a point of reference. Peter Vedel Kessing, a senior researcher at the Danish Institute for Human Rights and expert on terror legislation, points out that a study trip to the UK in 2009 was crucial for the development and implementation of Danish legislation. In order to evaluate the British influence on the Danish system, it is essential to consider the basic characteristics of the former.

The scale of the perceived terror threat to Britain as well as to Denmark, increased radically after 9/11. Following a grave terrorist attack on one of its most important allies, Parliament of the United Kingdom implemented a strict anti-terrorism legislation in 2001, which was highly controversial and profoundly criticized for allowing indefinite detention of suspected international terrorists without convictions being obtained against them. However, the indefinite detention regime was claimed inconsistent with Article 5 of the ECHR, which protects the right to liberty and security of the person. Returning foreign terror suspects to their home countries was not possible in many cases as they came from countries with a history of torture and deporting them was against the ECHR. In March, 2005 it was declared incompatible with the ECHR and a new legislative framework to combat terrorism was enacted by the Parliament.

This was followed by the introdution a new form of sanctions – control orders, which allow the imposition of restrictions on any person suspected of involvement in any terrorism-related activity. The restrictions might include house curfews, control of Internet and telephone access, electronic tagging, bans on foreign travel, daily reporting to police, etc. Kessing argues that the British “control orders” are comparable with the Danish practice of “exceptional leave to remain” even though the former are much stricter.

Even though the implementation of the new detention regime in the UK demonstrates a shift towards a greater compliance with the ECHR, the model is not entirely unproblematic. Tony Blair, the former Prime Minister of the United Kingdom, justified the orders as the second best option within the existing legislation. On the other hand, the British system has been criticized by civil liberties and human rights activists who have argued that control orders can deprive the suspects of their freedom on the basis of secret information and without even being accused of a crime.

Regarding the recent Supreme Court ruling of the Tunisian Case, Bjørn Elmquist sees it as a plus that the Supreme Court makes this specific emphasis on the need to disclose evidence. On the other hand, this is the first time when the court has taken a stand in regard to the system of secret trials and the outcome is the seal of approval of the system as such. The secret trials have thus not been ruled as a violation of civil rights. This is, according to Elmquist, to be seen as a defeat for the general protection of the law. According to professor in law, Eva Smith, the Supreme Court would not rule against the law of secret trials itself, but in individual cases rule in favor of the accused on the grounds of a lack of a fair trial. In Smith’s point of view the secret trials are here to stay. Similarly, Peter Kessing argues that the recent ruling by the Supreme Court on the Tunisian Case can be seen as an approval of the Danish system of open and secret trials. Kessing further agrees that the system is reasonable and necessary while balancing the concerns of national security as well as the basic legal rights of the accused.

Secret Trials - Who Cares?

Legal experts thus acknowledge the need for some sort of special measures when dealing with terror suspects, however, with some reservations about the dangers of compromising civil liberties. Despite this debate among legal experts including concerns about human rights, the debate is yet to attract the general public’s attention. Considering the severity of the practice of secret trials and the relatively extensive media coverage of the two cases discussed in this paper, the limited public debate about the use of secret trials in Denmark is surprising. Kessing finds that there seems to be a broad political consensus about the need for strict counter-terrorism legislation. Something, he suggests, might have to do with the relatively high degree of trust in the state and political authorities in the Danish society. In the case of the secret trials there seems to be a general trust in the administrative system’s ability to make the right decisions to secure the fairness of the prosecution.

Several opinion polls indicate that the Danish population is generally supportive of the government’s counter-terrorism legislation. When asked in December 2004 whether they “agree” or “disagree” with the statement that terrorists should have the same rights as other criminals, 65 % disagrees. This shows a substantial support for giving terror suspects a different treatment than other criminals. Also, there seems to be little fear of increasing surveillance and intervention of personal privacy. In a poll from July 2005 the Danes are confronted with the increasing surveillance in the society and asked if they believe this should be extended to allow banks to put up surveillance outside cash machines. With 89% approval, there seems to be little fear of potential negative effects of surveillance.

With the broadness of §114 and the high degree of trust in the political system, there is ample room for officials to interpret the counter-terrorism legislation. This should lead to caution about the amount of power left in the hands of these officials in deciding what is defined as terrorism. The intent or the motive behind criminal acts tips the scale for the officials to judge whether it is terror related or not. But how to investigate someone’s intent behind a specific act? A good example to illustrate this challenge, and the potentially biased evaluation of the categorization of such crimes, is a recent case with five youngsters, between 19-23 years old, arrested for attempted arson. The youngsters were caught in the act on the night of April 26 2011 as they tried to set a police school in Brøndbyøster on fire. PET stated to the news agencies that they considered the youngsters as politically motivated, categorizing them as radical left-wingers. One of them had also been preventively detained during the climate summit in Copenhagen. PET thus knew these young people from before. They have not yet been convicted and are also charged with planning of burning down a Danish bank. They are prosecuted under the paragraph of severe arson, but not terror. Peter Vedel Kessing expresses concern precisely about the broadness of § 114 with this open question: “What if the youngsters had been Muslims and not Danish leftists? Would they then have been charged for terrorism?” The seemingly broad definition can therefore be used in practice to single out and target a specific group in society. In this context, this would concern the Danish Muslim minority.

Preventing or Creating Terror?

The secret trials and the general trends to compromise human rights in the attempt to secure society against terrorism pose a serious threat to the fundamental principles of democracy. Furthermore, it could be argued that measures as those used in the case of Vollsmose could turn out to be counterproductive in the fight against terror as they risk producing negative sentiment towards the Danish state and maybe even spur some people towards terrorism. Obviously, the state needs to secure its citizens and, thus, measures to fight terrorism are needed. However, the question remains: how far can we go in the name of national security? The special treatment of terror suspects contribute to a discourse where certain groups of the population are subjected to different legal rules. By striking down hard on potential terror suspects as in the case of Vollsmose there is a risk of alienating the Muslim minority. There is a risk that strict counter-terrorism measures will contribute to stereotyping Muslims as terrorists and thereby have a negative effect on the general integration process. Such potential counterproductive effects of counter-terrorism legislation must be kept in mind when balancing the concerns for security and civil liberties.

Sources

Personal Interviews

Bjørn Elmquist, defense lawyer. Interviewed the 22nd and 26th of June 2011.

Claus Juul, legal consultant from Amnesty International. Interviewed the 22nd and 27th of June 2011.

Eva Smith, professor of law at the University of Copenhagen. Interviewed the 21st and 26th of June 2011.

James von Geldern, professor of human rights and law. Interviewed the 27th of June 2011.

Peter Vedel Kessing, senior researcher at the Danish Institute for Human Rights. Interviewed the 23rd and 27th of June 2011.